LUISA GIL VS. LOUIS ALVERADO (L-0447-15, MERCER COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1987-16T3
LUISA GIL and CARLOS MALPUD,
her husband,
Plaintiffs-Appellants,
v.
LOUIS ALVERADO, MAGIC ROOFING
CO., and MIKE PORUBSKY,
Defendants-Respondents.
____________________________________
Argued May 1, 2018 – Decided June 6, 2018
Before Judges Hoffman and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No.
L-0447-15.
Lara R. Lovett argued the cause for appellants
(Pellettieri, Rabstein & Altman, attorneys;
Thomas R. Smith, on the briefs).
Kevin J. Conyngham argued the cause for
respondents Magic Roofing Co. and Louis
Alverado (Zimmerer, Murray, Conyngham &
Kunzier, attorneys; Kevin J. Conyngham, on the
brief).
Nicholas C. Apicelli argued the cause for
respondent Michael Porubsky (Apicelli,
Costanzo & Russom, attorneys; Nicholas C.
Apicelli, on the brief).
PER CURIAM
Plaintiff Luisa Gil slipped on a garden hose in the driveway
of the apartment building where she was a tenant. She fell and
broke her foot. She and her husband (collectively, plaintiffs)
appeal from two orders: an October 14, 2016 order granting summary
judgment to co-tenant Magic Roofing Co. (Magic Roofing) and its
owner Louis Alverado; and a December 2, 2016 order granting summary
judgment to the landlord Michael Porubsky and denying plaintiffs'
motion for reconsideration of the October 14, 2016 order. We
affirm the order granting summary judgment to Porubsky because no
facts showed that he had actual or constructive knowledge of the
dangerous conditions that contributed to Gil's fall. We reverse
the order granting summary judgment to Magic Roofing and Alverado
because there are disputed material facts concerning whether the
hose constituted a dangerous condition. Moreover, we hold that
under the facts of this case, Gil's knowledge of the presence of
the hose and her decision to walk over the hose, raised jury
questions concerning her comparative negligence and assumption of
the risk.
I.
Defendant Porubsky owns a three-unit apartment building in
Trenton. The building is part of a property that also has a
driveway with parking spaces, and a detached two-car garage. Gil
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and her husband, Carlos Malpud, rented a first floor apartment in
Porubsky's building. Defendant Alverado owned and operated a
roofing business, known as Magic Roofing. Magic Roofing rented
the driveway of Porubsky's building and the detached two-car
garage, which it used to park its roofing vans and store materials.
Employees of Magic Roofing would regularly use a garden hose
to wash the roofing vans in the driveway of the apartment building.
Gil testified that she was aware of that practice. Indeed, Gil's
husband worked for Magic Roofing and, on a weekly basis, he would
use a hose to wash the roofing vans. The hose was typically stored
in a basement window well.
On March 18, 2013, at approximately 9:00 p.m., Gil went out
of her apartment to retrieve an invitation from a friend who was
waiting in a parked car at the front of the driveway. Gil used
the rear door and walked along the driveway towards the front of
the property. She testified that it was raining lightly and that
she had to use a narrow two-foot path between the parked roofing
vans and the apartment building. While walking, Gil saw a garden
hose laying in the pathway. When she attempted to walk on or over
the hose, she slipped, fell, and broke her foot.
At her deposition, Gil testified that she saw an employee of
Magic Roofing using the hose to wash a van on the afternoon of
March 18, 2013. She also testified that she saw the hose and
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decided to walk over it before she tripped. She explained that
she stepped on the hose, but could not recall exactly how she
slipped and fell. In that regard, she testified that the hose may
have been slippery because it was raining and the pavement on the
driveway may have been uneven.
In her answers to interrogatories, Gil certified:
On or about March 18, 2013, at approximately
9:00 p.m., I tripped and fell over a hose,
that was lying on the driveway, which was
unlevel, and in disrepair at the residence
that I leased from the Defendant, Michael
[Porubsky], located . . . in the City of
Trenton County of Mercer and State of New
Jersey. I believe the hose was left out, and
used by co-defendant, Louis Alverado and Magic
Roofing, who kept their materials on the
premises. Also, there was insufficient
lighting at the time and it made it difficult
to see in the area.
Gil and her husband sued Porubsky, Magic Roofing, and
Alverado, contending that each was negligent in causing the
conditions that led to her fall and injury.
Following the completion of discovery, Magic Roofing and
Alverado moved for summary judgment. They contended that they
owed no duty to inspect the driveway and that the garden hose did
not constitute a dangerous condition. The trial court heard oral
argument, agreed with Magic Roofing and Alverado, and granted them
summary judgment in an order dated October 14, 2016. On the
record, the court explained that Magic Roofing and Alverado owed
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a duty to their co-tenant to make the part of the premises they
rented safe. The court also held, however, that the hose did not
constitute a dangerous condition because Gil saw the hose and
decided to proceed over it.
Thereafter, Porubsky moved for summary judgment. Plaintiffs
opposed that motion and cross-moved for reconsideration of the
order granting summary judgment to Magic Roofing and Alverado.
The court heard oral argument on December 2, 2016. Porubsky argued
that plaintiffs had failed to present any evidence that the
driveway was uneven or that any condition on the driveway
contributed to the accident. He also argued that he did not have
a duty to inspect the property on a daily basis and had no knowledge
of the conditions that contributed to Gil's slip and fall.
The trial court ruled that Porubsky had a duty to use
reasonable care to guard against foreseeable dangers. The court
then held that there was no evidence that Porubsky had any actual
or constructive knowledge of the conditions that contributed to
Gil's slip and fall and, therefore, granted his motion for summary
judgment.
Addressing the motion for reconsideration, the court applied
the standards under Rule 4:49-2 and denied the motion because
plaintiff failed to present anything that would lead the court to
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conclude that its original order was palpably incorrect,
unreasonable, or overlooked controlling precedent.
II.
On appeal, plaintiffs make three arguments. First, they
contend that no defendant was entitled to summary judgment, because
Gil's knowledge of the dangerous condition before her injury did
not preclude a finding of negligence. Second, they argue that
Porubsky violated a duty owed to Gil by not addressing certain
conditions on the premises that contributed to her slip and fall.
Finally, they argue that Gil's knowledge of the hose and her
decision to walk over it raised questions that should have been
presented to a jury concerning her comparative negligence or
assumption of the risk.
In reviewing summary judgment orders, we use a de novo
standard of review and apply the same standard employed by the
trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395,
405 (2014). Accordingly, we determine whether the moving parties
have demonstrated there are no genuine disputes as to any material
facts and, if so, whether the facts, viewed in the light most
favorable to the non-moving party, entitled the moving parties to
judgment as a matter of law. R. 4:46-2(c); Davis, 219 N.J. at
405-06; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995).
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We will first review the summary judgment granted to Porubsky,
the landlord. Thereafter, we will review the order granting
summary judgment to the co-tenants, Magic Roofing and Alverado.
A. The December 2, 2016 Order Granting Summary Judgment to
Porubsky
To establish negligence, a plaintiff must prove: "(1) a duty
of care, (2) a breach of that duty, (3) actual and proximate
causation, and (4) damages." Davis, 219 N.J. at 406 (quoting
Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576,
594 (2013)). Plaintiffs bear "the burden of establishing those
elements 'by some competent proof.'" Townsend v. Pierre, 221 N.J.
36, 51 (2015) (quoting Davis, 219 N.J. at 406).
Generally, a landlord has a duty to maintain the premises in
good repair and in a safe condition for tenants. Dwyer v. Skyline
Apartments, Inc., 123 N.J. Super. 48, 51 (App. Div.), aff’d o.b.,
63 N.J. 577 (1973). To establish negligence by a landlord, the
plaintiff must prove that the condition caused the injury and that
the condition was known or should have been known to the landlord
prior to the occurrence. Id. at 52.
Here, plaintiffs claim that Porubsky breached his duty to
maintain the apartment premises in a safe condition by failing to
ensure proper lighting, failing to repair uneven pavement on the
driveway, and failing to ensure that his other tenants – Magic
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Roofing and Alverado – properly stored their hose. At their
depositions, both plaintiffs admitted that before the accident,
they never told Porubsky about the hose. Gil's husband also
admitted that they never complained to Porubsky about the uneven
pavement on the driveway. Finally, Gil acknowledged that she did
not complain to Porubsky about the lighting on the driveway, and
conceded that the driveway light was controlled by the second
floor tenants.
In contrast, Porubsky explained at his deposition that the
driveway had two sources of light: a flood light that automatically
came on when it got dark outside and a separate light controlled
by the upstairs tenants. With regard to the driveway, he explained
that whenever he was aware of a need for repair, he either repaired
the driveway himself or had somebody else repair it. Finally, he
testified that he had never observed the hose on the property and
had no knowledge of Magic Roofing washing their vans on the
driveway.
Viewing the evidence in the light most favorable to
plaintiffs, there was no evidence from which a jury could find
that Porubsky had actual or constructive knowledge of the
conditions that led to Gil's slip and fall. Accordingly, the
trial court properly granted summary judgment to Porubsky, and we
affirm that portion of the December 2, 2016 order.
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B. The October 14, 2016 Order Granting Summary Judgment to
Magic Roofing and Alverado
Plaintiffs contend that the trial court erred in granting
summary judgment to defendants Magic Roofing and Alverado because
the combination of the mislaid hose and defendants' improperly
parked vans created a dangerous condition.
Determining whether a duty exists is a question of law for
the court. Longo v. Aprile, 374 N.J. Super. 469, 472 (App. Div.
2005). "For many years, the common law focused on property rights
and determined the scope of a [possessor of land's] duties
according to the status of the injured person as a business
invitee, a [licensee], or a trespasser." Meier v. D'Ambrose, 419
N.J. Super. 439, 445 (App. Div. 2011). More recent opinions,
however, apply a fact-sensitive approach to determine the extent
of a duty owed by a possessor of land to an injured person. Ibid.(citing Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 435-41
(1993)).
In cases where the status of an injured party is not precisely
defined, "the attempt to pigeonhole the parties within the
traditional categories of the common law is both strained and
awkward." Hopkins, 132 N.J. at 438; see also Lechler v. 303 Sunset
Ave. Condo. Ass'n, 452 N.J. Super. 574, 583 (App. Div. 2017) ("Only
in the cases where a plaintiff does not fit into the common law
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categories must a court perform the full duty analysis described
in Hopkins."). Instead, the inquiry should focus on whether, in
light of the actual relationship of the parties under all of the
surrounding circumstances, imposing a duty to exercise reasonable
care to prevent foreseeable harm is "fair and just." Hopkins, 132
N.J. at 438.
Here, Magic Roofing and Alverado rented parking spaces from
Porubsky for a commercial purpose. On that same property,
plaintiffs rented a residential apartment and had a shared right
to use the driveway. Consequently, Gil cannot be considered a
business invitee in the true sense, because she was not conferring
an economic benefit on Magic Roofing and Alverado at the time of
her injury. Similarly, Gil cannot be considered a licensee or
trespasser because she was a rent-paying tenant and had a right
to use the driveway at her apartment building. Given those
circumstances, the extent of the duty owed by Magic Roofing and
Alverado should be determined using the factors articulated by our
Supreme Court to address premises liability when the common law
classifications do not squarely apply. See Hopkins, 132 N.J. at
433.
In Hopkins, the Court addressed the duty owed by a real estate
broker to members of the public attending an open house. The
Court held that brokers have a duty to conduct a walk-through of
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the house and warn visitors of discoverable conditions on the
property that pose a hazard or danger. The Court explained that
the common law classifications were not the predominant issue;
rather, the focus should be on the actual relationship between the
parties under all of the surrounding circumstances. Id. at 438.
Following Hopkins, courts apply a four-factor analysis.
Preliminarily, when determining the extent of a defendant's duty
of care, courts must consider the foreseeability of the risk of
injury, then identify, weigh, and balance: (1) the relationship
of the parties; (2) the nature of the attendant risk; (3) the
opportunity and ability to exercise care; and (4) the public
interest in the proposed solution. Alloway v. Bradlees, Inc., 157
N.J. 221, 230 (1999) (citing Hopkins, 132 N.J. at 439). Moreover,
the extent of a party's duty to exercise reasonable care should
be based on fairness, taking into account the totality of the
circumstances. Campbell v. Hastings, 348 N.J. Super. 264, 269
(App. Div. 2002).
Applying the Hopkins analysis to the facts of this case,
Magic Roofing and Alverado owed Gil a duty to prevent the
foreseeable risk of tripping over the improperly placed hose by
inspecting the property at the end of the work day to ensure the
safety of the residential tenants of the building. Plaintiffs,
Magic Roofing, and Alverado shared the driveway. Magic Roofing
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and Alverado knew or should have known that objects left in the
driveway could cause another tenant to slip and sustain an injury.
Giving Gil the benefit of all favorable inferences, Magic Roofing
and Alverado should have known that leaving the hose in such a
position could cause one of the residential tenants to trip and
fall. Moreover, Alverado had the opportunity and ability to
inspect the driveway to ensure that his employees left it in a
safe condition. Indeed, at the time of Gil's injury, Alverado
lived across the street from the apartment where his vans were
parked, and easily could have inspected the driveway area for
dangerous conditions and tripping hazards. Alverado also could
have directed his employees to properly store the hose and to
inspect the area whenever they finished washing the roofing vans.
Finally, imposing a duty on Magic Roofing and Alverado in these
circumstances would not create an undue burden on businesses that
rent space to store their commercial vehicles.
Thus, Magic Roofing and Alverado owed a duty to Gil. The
question whether the hose was a dangerous condition presents a
disputed issue of fact that should be resolved by a jury. Gil
contends that she had to walk down a narrow pathway between Magic
Roofing's improperly parked vans and the apartment building. She
further contends that leaving a hose across that pathway
constituted a dangerous condition. Magic Roofing and Alverado
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dispute that contention by focusing on Gil's awareness of the hose
and her decision to proceed anyway. The issues of Gil's
comparative negligence and assumption of the risk are factual
determinations that also should be made by a jury. See, e.g.,
Vega by Muniz v. Piedilato, 154 N.J. 496, 529 (1998) ("Issues
pertaining to negligence defenses, including comparative
negligence, 'are jury questions and . . . a court should not take
the place of a jury in solving them except in plain and
indisputable cases.'"); Altomare v. Cesaro, 70 N.J. Super. 54, 62
(App. Div. 1961) ("[T]he existence of either contributory
negligence or of its twin, assumption of the risk, is customarily
a preeminent question of fact for the jury.").
Consequently, we reverse the October 14, 2016 order granting
summary judgment to defendants Magic Roofing and Alverado. Having
reversed that order, the portion of the December 2, 2016 order
denying reconsideration is vacated. The matter is remanded for
further proceedings against defendants Magic Roofing and Alverado.
Affirmed in part, reversed in part, and remanded. We do not
retain jurisdiction.
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